WSR 06-11-012



[ Filed May 4, 2006, 1:16 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 06-07-105.

Title of Rule and Other Identifying Information: WAC 390-37-090 relating to informal settlement, cases resolvable by stipulation prior to enforcement hearing.

Hearing Location(s): Commission Hearing Room, 711 Capitol Way, Room 206, Olympia, WA 98504, on June 29, 2006, at 9:30 a.m.

Date of Intended Adoption: June 29, 2006.

Submit Written Comments to: Doug Ellis, Public Disclosure Commission, P.O. Box 40908, Olympia, WA 98504-0908, e-mail, fax (360) 753-1112, by June 26, 2006.

Assistance for Persons with Disabilities: Contact Chip Beatty by phone (360) 586-0544.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Possible rule amendment to reflect the commission's intent to receive stipulated agreements involving civil penalties prior to an adjudicative proceeding. Stipulations shall be provided by 4:00 p.m. the business day preceding a commission hearing.

Reasons Supporting Proposal: To provide guidance and clarification to the general public and persons subject to the disclosure law.

Statutory Authority for Adoption: RCW 42.17.370.

Statute Being Implemented: Chapter 42.17 RCW.

Rule is not necessitated by federal law, federal or state court decision.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The rule amendment is needed to provide clarity, guidance and direction to persons during an informal settlement process in cases resolvable by stipulation prior to an enforcement hearing.

Name of Proponent: Public disclosure commission, governmental.

Name of Agency Personnel Responsible for Drafting and Implementation: Doug Ellis, 711 Capitol Way, Room 206, Olympia, WA 98504, (360) 664-2735; and Enforcement: Phil Stutzman, 711 Capitol Way, Room 206, Olympia, WA 98504, (360) 664-8853.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The implementation of this rule amendment has minimal impact on small businesses.

A cost-benefit analysis is not required under RCW 34.05.328. The public disclosure commission (PDC) is not an agency listed in subsection (5)(a)(i) of section 201. Further, the PDC does not voluntarily make section 201 applicable to this rule adoption pursuant to subsection (5)(a)(i) of section 201, and, to date, the joint administrative rules review committee has not made section 201 [applicable] to the adoption of these rules.

May 4, 2006

Douglas J. Ellis

Assistant Director


AMENDATORY SECTION(Amending WSR 05-11-001, filed 5/4/05, effective 6/4/05)

WAC 390-37-090   Informal settlement -- Cases resolvable by stipulation prior to an enforcement hearing (adjudicative proceeding), or by other alternative dispute mechanisms.   (1) RCW 34.05.060 authorizes agencies to establish by rule specific procedures for attempting and executing informal settlement of matters. The following procedures are available for informal dispute resolution prior to an adjudicative proceeding that may make more elaborate proceedings under the Administrative Procedure Act unnecessary.

(a) Any enforcement matter before the commission which has not yet been heard in an adjudicative proceeding may be resolved by settlement. The respondent shall communicate his or her request to the executive director or designee (commission staff), setting forth all pertinent facts and the desired remedy. Settlement negotiations shall be informal and without prejudice to rights of a participant in the negotiations.

(b) When the executive director and respondent agree to terms of any stipulation of facts, violations, and/or penalty, commission staff shall prepare the stipulation for presentation to the commission.

(c) Any proposed stipulation shall be in writing and signed by each party to the stipulation or his or her representative. The executive director shall sign for commission staff. ((The stipulation shall be provided at the hearing.)) Any stipulation to facts and violations shall be provided prior to or at the hearing. Stipulations to penalty shall be provided by 4:00 p.m. the business day preceding the hearing. The commission has the option of accepting, rejecting, or modifying the proposed stipulation or asking for additional facts to be presented. If the commission accepts the stipulation or modifies the stipulation with the agreement of the opposing party, the commission shall enter an order in conformity with the terms of the stipulation. If the commission rejects the stipulation or the opposing party does not agree to the commission's proposed modifications to the stipulation, and if no revised stipulation or staff report is presented to the commission, then an adjudicative proceeding shall be scheduled and held.

(2) Parties are encouraged to be creative in resolving cases without further litigation where appropriate.

(3) Following a stipulation of facts or law, if the commission determines certain sanctions or other steps are required by the respondent as a result of the alternative dispute resolution including stipulations and that it intends to enter an order, and the respondent does not timely raise an objection at the hearing, it shall be presumed that the respondent has waived objections and appeals, and agrees to the entry of the order.

[Statutory Authority: RCW 42.17.370. 05-11-001, 390-37-090, filed 5/4/05, effective 6/4/05; 03-22-065, 390-37-090, filed 11/4/03, effective 12/5/03; 91-16-072, 390-37-090, filed 8/2/91, effective 9/2/91. Statutory Authority: RCW 42.17.370(1). 86-04-071 (Order 86-01), 390-37-090, filed 2/5/86; 84-12-017 (Order 84-03), 390-37-090, filed 5/25/84; Order 81, 390-37-090, filed 7/22/76.]

Washington State Code Reviser's Office